"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." Discuss.

A couple of "free speech" issues have arisen in the last week - one a bit ho-hum, the other somewhat more serious.

The first case is that of Martin "Bomber" Bradbury and his blackballing from Radio New Zealand National's (RNZ's) "The Panel" afternoon chat show. He had been an occasional guest on this show until last week, when the RNZ powers-that-be decided his "what's on your mind?" rant against John Key was the sort of opinion mongering they didn't want to be associated with.

(You can read the offending screed on "Bomber's" blog here if you want to ... suffice to say it mixes a bunch of legitimate gripes about John Key's recent actions with some over-the-top rhetoric ("...the sort of ravings one expects from a meth addict on a bender, not the political leader of a country") to create a fairly pedestrian hatchet job that will delight those who already dislike the man and simply irritate everyone else.)

What is interesting, however, is the reaction to RNZ's decision from other bloggers who appear on the show. It has ranged from the condemnatory (Brian Edwards) to the rueful "it had to happen" (Chris Trotter) to the shrugging "meh" (Scott Yorke) to the cautiously supportive (David Farrar) to the cravenly silent in the face of disgraceful censorship (yes, Tim Watkin ... I'm looking at you).

For me, "Bomber's" fate is all a bit reminiscent of the BBC's decision to ban the Sex Pistol's "God Save the Queen". If your primary claim to fame is that you are outside of the establishment kicking the doors in, then the only true proof of your credentials is that the establishment turns its back on you. But the day you hear your song booming forth on the state-funded broadcaster, you know you've gone from being truly radical to merely safe nostalga for those who used to be young (or, even worse, become the in-house "youth" provocateur used to prove how hip and with-it the station is).

So, if "Bomber" really is all about keepin' it real by kickin' against the pricks, not only was The Panel an awfully odd place to be doing it, but getting booted off it should be a real badge of pride. And if he isn't, and it was all a bit of ham acting that got out of hand, then it's an object lesson in the dangers of overplaying your role. All a bit of no harm, no foul then: "Bomber" is confirmed in the outsider status that pays the bills across a variety of media platforms, National Radio's basic risk-aversion and establishment role is underscored, and its listener base is saved from having to be hectored with verbatim recitals of whatever happens to have posted on "Bomber's" blog recently.

Of more concern, I think, is Speaker Lockwood Smith's decision to ban all reporters working for the NZ Herald from accessing parliamentary precents for 10 days after their paper published a photograph of a disturbed man trying to leap from the public galleries into the debating chamber below. The basis for this ban is that the rules on filming and photographing in the House prohibit showing any disturbances in the public galleries, to discourage people from carrying out such behaviour in pursuit of media attention for their cause.

There's two matters to discuss here. The first is the background motive for the Speaker's action. This punishment seems to be part of his determined effort to force the news media to play within the rules that parliamentarians have set for them. (I posted on an earlier, somewhat less heavy handed, response here.) As he is quoted as saying here: ""The Standing Orders in Parliament are not just general protocols - they are actually the rules of Parliament and all members of ... the press gallery have to comply with them."

That may be true. And it may be true that the Herald's decision to publish the photo was in technical contravention of those rules. But so what? Is it true, as the Speaker carries on to say, "If [the Herald's actions were] allowed, there would likely be an escalation of incidents and we'd have no choice but to block off the gallery and I think that would be a real shame.''

I have my doubts. After all, it was clear by the time that the Herald published the photo that the man involved was not acting out of any rational strategy to maximise media coverage of his situation. Likely he wasn't really thinking about his actions at all. So it's not as if publishing a shot of his action will encourage a flock of copy-cat demonstrations in the gallery - as would, for example, a decision to publish a photo of a group waving protest banners or the like.

The Speaker's prediction that the Herald's action will lead to "an escalation of incidents" thus seems to rest on a belief that other disturbed individuals will see the attention given to this man and decide "I'd like a bit of that too, thanks." But is this really likely? Is there any real evidence that printing a photo of a disturbed individual doing something dangerous in public - sitting on a window ledge threatening to jump, or dangling a baby over a balcony - causes other disturbed people to do similar things? And if that isn't the result in public, why would it be any different in Parliament?

Of course, the Speaker may respond that irrespective of the question of whether there was real harm done, it still isn't for the Herald to pick and choose which parliamentary rules to follow. However, this misses the point somewhat. Because when it comes to his enforcing those rules and punishing rule breakers, the Speaker is bound to apply them in accordance with the New Zealand Bill of Rights Act 1990.

Under this legislation, the Herald has a right to freedom of expression (including taking and publishing photos of disturbances in the Gallery) that can only be limited when it is "demonstrably justified in a free and democratic society." This means that when the Speaker comes to consider whether the Herald's action is a breach of Parliament's rules barring that expression, he has to show that the decision it is such a breach (and the resultant punishment) can be justified in this fashion. And if he can't, then his actions are in contravention of the law.

In short, the Speaker can't just say "I consider the rule was broken and here's the penalty". He rather has to be able to say "finding this particular action is in breach of the rules, and then punishing it in this way, is justified because of these particular reasons." And if the only reason is "the act contravened the wording of the rule, even if it didn't really cause the problem the rule is intended to avoid", then that just isn't good enough.

Of course, in one way it is neither here nor there that the Speaker may well have acted in breach of a law - the NZBORA - when taking his decision. You can't challenge the Speaker's application of Parliament's rules in court - it simply isn't a matter a judge will look at. But you would like to think that the Speaker is somewhat concerned to abide by the law when deciding how Parliament will be run.

I think that would be nice, anyhow. And if RNZ is looking for a new panelist, I will say things like that in very moderate, non-defamatory tones ... all for a very reasonable price.

Having moved house over the last week, I didn't have time to blog myself on Herald ban, but I think I'd like to have done so on the following basis:

1. It is not clear to me that this was a breach of standing orders. The standing orders provide:

PART A: RULES FOR FILMING (1) A provider of official television coverage of the House must comply with the following rules...

(2) These rules apply also to any other filming from the gallery.

Is taking a digital still from a camera phone "filming". I say not. Not least because Standing Order 44, which empowers the rules set down in the scehedule quoted above is headed "Broadcasting".

2. Even if it is filming and/or broadcasting, the Standing Orders provide for the consequence:

(3) The Serjeant-at-Arms will intervene if it becomes apparent that cameras are filming matters not within the rules. Broadcasters who offend the rules may have their privilege of filming in the Chamber withdrawn.

If the House wishes to give the Speaker the power to ban accredited journalists from the precincts for breaches of the filming rules, it may wish to do so, but instead it has carefully proscribed what may happen in such a situation.*

Maybe he could claim the power from elsewhere, but he didn't. Tthe Speaker purported to be exercising powers under the Standing Orders that simply do not exist.

* I note that it has declared that the misuse of official footage is a contempt, it hasn't said that this is.

3. It is not clear to me that the Speaker's decision is a proceeding of Parliament, and as such, I think it would be awesome if the Herald took the matter elsewhere...

Is this the same rule that parliamentarians introduced a few years ago, blocking independent media companies from doing their own filming in the house (in favour of the "official" coverage) after we'd seen an inordinate number of comedy news stories about non-speaking MPs picking their noses and making rude gestures towards each other? Or has it always been against the rules to photograph people who aren't MPs?

Even if this isn't a "proceeding in Parliament" and so absolutely protected under Article 9, I wonder if it isn't so bound up in the governance of the House that a court would decide on general comity grounds to leave it be (as happened in Boscawen). But, yeah ... of course us lawyers would like to see the matter "taken elsewhere". My preference would be the street, with Tim Murphy and Lockwood Smith allowed to choose between a baseball bat, knife or tyre-iron as means of settling the issue.

MikeM,

Yes - Graeme is referring to the rules adopted to govern broadcasting by Parliament TV. Before then, there were still rules on what could/could not be shown about what MPs (and others in the House) were doing. I/S blogs about it here.

In defence of Lockwood, I'm not sure you correctly characterised his position. I thought he was arguing that simply providing broadcasters with an exemption to the general prohibition would lead to publication of a wide variety of photos/video etc of activities in the gallery including protests.

So the dire consquences he predicted were supposed to follow from the media having the ability to publish pictures of events in the gallery more generally, not the ability to publish pictures of events solely of the type that happened this time.

Sure - Lockwood was relying on a slippery slope argument ... "if this, then what next?" But those sorts of arguments are problematic. For one thing, where do they start? I mean, if you can describe in words what happened in the Gallery, then won't that inevitably lead to journalists seeking to publish photos? So isn't that a good reason to prohibit any sort of description at all of any disturbance in the Gallery?

For another, why can't we say that if a journalist/paper prints a photo that actually causes the harm feared - publicises disturbances in the Gallery in a way that encourages more such disturbances to happen - then they can and will be punished? So saying that this rule breach (if it was a rule breach - see Graeme above) ought not to be punished does not mean it's open slather ... or that inevitably the real harm feared will come about.

I'm not really sure why you think the ability to describe something would inevitably lead to journalists seeking to publish photos. The link isn't clear to me so I can't really respond to that.

You could take the approach you describe in the second para, but a) that isn't the current rule, so isn't an approach that could be taken in this instance b) it would presumably put a responsibility on the speaker to investigate and determine the level of harm, which would be probematic, or put an obligation on complainants to establish harm which would also be difficult, and c) there seems to me to be a reasonable argument that the harms Lockwood describes (which no one seems to dispute are bad) should be prevented, rather than responded to (by way of example the way we deal with speeding (it's illegal even if no harm is done) is aimed at preventing, rather than responding to the potential harm).

Martyn? Sigh. My silence Andrew is a mix of a busy week, a friend visting from the US and, I admit, a certain ambivalence.

You don't need the long story, but Martyn's an old friend who has let me down badly recently. On Tumeke he printed some outright lies about me and about Q+A. They completely called into question my integrity without a shred of fact.

I told him he was wrong, explained what really happened, even presented him with evidence. He replied with name calling and then by ignoring me. He never corrected or apologised, on the site or in person.

I thought that disgraceful. So part of me thinks he can go hang. And he seems to be crossing lines all over the place at the moment, so like Trotter I'm not surprised. And I haven't spoken to Jim Mora (who I respect) and don't know what's gone on in the background. And sometimes there are professional reasons for these things that can't be seen from outside – perhaps, for example, his sin was as much talking over Jim and things said off-air. And some of what he said seemed kinda defamatory.

But then I realised a) the Lange case gave us pretty much free rein with MPs... b) he's ranted like that any number of times... c) the panel is all about our various opinions and we are asked to say what's been on our mind... and d) well, we are supposed to defend free speech even if the person speaking has been a dick (to paraphrase Voltaire).

So, yeah, it seems an odd call to me from RNZ. Sadly heavy-handed. Ethics are vital, but this comes across as smug. And if there's no more to it than we know, then unfair. But I wonder if there is more to it.

Part of me thinks it's a lesson to Martyn about burning bridges and the way he treats people. But in principle, you're quite right, he should be able to speak his mind, especially in election season.

And it sets a difficult precedent for Jim. I always talks politics when I go on. Should I not express an opinion now to protect RNZ's precious rules? What about Stephen Franks? Michelle Boag? Or other regulars?

Graeme, interesting points. Lockwood was very clear about standing orders and he's so particular. Is he really just wrong? Those excerpts you quote Audrey could have had her phone removed, and that's about it.

I personally had felt parliament has taken too much control over reporting of the place and the rules, as claimed, are off-kilter. The Herald knew the rules and chose to breach, so whilst I'd applaud their decision, they must expect to wear the punishment. The job was to get the tules changes. But now you say the rules aren't as reported?

"I'm not really sure why you think the ability to describe something would inevitably lead to journalists seeking to publish photos. The link isn't clear to me so I can't really respond to that."

The link is right there in the pages of the NZ Herald. Had not Audrey Young been permitted to write a story about the "incident" in the Gallery, the editor would not have sought to illustrate it with the photo she took. Ergo, to be sure that such photos are not published, we must stop people writing about events in the Gallery. It's a slippery slope otherwise ... as the present situation demonstrates. Right?

As for the rest of your comment - the legal onus is on the Speaker to justify his action (his application of the rule and resultant penalty) as a demonstrably justified limitation on the right to free speech in the NZBORA. As I say in my post, simply saying "they broke a rule" isn't sufficient - he needs to show the application of that rule in the immediate case can be defended with reference to the reason for that rule (avoiding a particular harm). If he can't do that, he's in breach of the NZBORA, irrespective of what the rules of Parliament say ... an enactment is binding on Parliament (and the Speaker) as much as it is on anyone else.

Finally, the comparison with speeding is a false one - you do not have a right to drive at any particular speed, so a blanket prohibition on exceeding 50 km/h (or whatever) can be applied without further need for justification.

Part of me thinks it's a lesson to Martyn about burning bridges and the way he treats people. But in principle, you're quite right, he should be able to speak his mind, especially in election season.

But should he expect to be able to speak it as he does on The Panel? Does a right to say what you think equate to a requirement that a particular show carry your thoughts, irrespective of its editor's/producer's view of how they (and how they are expressed) fit the show's "mission"? If a guest came on to Q&A and decided to answer in latin (as, say, Chris Finlayson probably could), would you invite him/her back? If a guest came on to Q&A and spoke in a slow monotone such that the audience changed channels rather than watch her or him again, would you invite him/her back? If a guest came on and shouted over the top of Paul Holmes, would he or she get invited back?

As for whether RNZ's claims about defamation are off-set by the ruling in Lange v Atkinson, I'm not so sure. Yes, that case said there is a "qualified privilege" that protects commentary about the performance of political figures. But it also said that this privilege can be lost if a commentator is "reckless" about the truth of what they are saying. And the following passage from the Court of Appeal's judgment may be relevant to "Bomber's" diatribe:

"A case at one end of the scale might be a grossly defamatory statement about a Cabinet Minister, broadcast to the world. At the other end might be an uncomplimentary observation about a politician at a private meeting held under Chatham House rules. It is not that the law values reputation more in the one case than the other. It is that in the first case the gravity of the allegation and the width of the publication are apt to cause much more harm if the allegation is false than in the second case. A greater degree of responsibility is therefore required in the first case than in the second, if recklessness is not to be inferred. Responsible journalists in whatever medium ought not to have any concerns about such an approach. It is only those who act irresponsibly in the jury's eyes by being cavalier about the truth who will lose the privilege."

I guess the practical response on the defamation front is that Key would never sue; it would only harm him politically. So anything else is pure theory.

But RNZ spoke of ethics, which suggests they took a moral or legal objection all the same, rather than a professional or commercial one. And you'd have to agree that they could reasonably argue Martyn was cavalier with the truth.

What struck me when I first read his opinion as that it wasn't just critical and polemic, it was accusing Key of buying off Mediaworks for political gain; ie corruption. That's a serious and unsubstantiated allegation. On the other hand, plenty of other media have suggested there was something uneasily matey about that deal, especially the Steven Joyce connection.

To answer your question as to whether he should be able to do it on The Panel... Well, if not there, where? He's invited on as a guest to express an opinion, so the context is entirely reasonable. It's public radio, so it should be the most committed to freedom principles.

Is any show required to carry his thoughts? Of course not. Media is committed to free speech and diversity, but is not required to be a forum for every viewpoint in the world. There's such a thing as editorial discretion. But again, he as a well-known ranter was invited on to an opinion panel and asked to say what had been on his mind. What do you expect?

Speaking in latin or a monotone? We'd never have them back. End of. And that's what I was getting at, in that there may have been other professional reasons for him getting the elbow.

Behind the scenes the line might have really been drawn for a mix of reasons, somewhere in the midst of recklessness, bad manners and bad radio.

But publicly at least RNZ said he was banned for ethical reasons – not any other considerations. They could have simply not invited him again, quietly said there were no spots available or said they didn't like his style and eased him out. I reckon that's what a commercial operator would have done... But they chose to claim the high moral ground and publicly scold him. I'm not sure that's great management.

Oh, and the other words that leap out from that Court of Appeal ruling – "Responsible journalists". I don't think you can call Martyn a journalist, responsible or otherwise.

And I made a recommendation to the Review of Standing Orders about another error (which I freely admit to have long thought was the case as well), and it made a recommendation to change the law: suspended members of Parliament don't currently have their pay docked.

It seems the response to the recent incident is that now the rules for recording in parliament have been changed to be even more strict than they were.

Personally I'd prefer they'd been loosened so we could have had a more complete context for Annette King's 'scumbag' comments rather than have them suppressed entirely in future, but I guess not everyone thinks as I do.

"And it sets a difficult precedent for Jim. I always talks politics when I go on. Should I not express an opinion now to protect RNZ's precious rules? What about Stephen Franks? Michelle Boag? Or other regulars?" - Tim

Without commenting on the rest of your post, Tim (as I have no knowledge of what is going on 'tween you and Martyn) - the point you make above is perhaps one of the two most germane: how can we trust RNZ now?

I must admit that as I listen to RNZ - and Jim Mora's panel - I'm constantly wondering; what's not being said? Are the panellists self-censoring?Are opinions being muted? Facts left out?

The second thing about this is the implications of Bradbury's banning seems fairly clear; criticise the Dear Leader - oops, I mean, Prime Minister - at your peril. (And to think that, when I listened to my parents talking about the Soviet puppet-regime that governed their country, I used to think, "thank gods it can't happen here... )

Not since Muldoon banned Tom Scott have we seen an overt attempt to silence a dissident by removing him from a public platform.

I guess the right to free speech is much easier to defend when one agrees with what's being said. The test comes when we disagree.